United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 1, 2004
Charles R. Fulbruge III
Clerk
No. 04-40196
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAI TAN DUONG, formerly known as Tan Tai Duong,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:93-CR-16-1
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Tai Tan Duong, federal prisoner # 04216-078, has appealed
the denial of his motion under 28 U.S.C. § 3582(c)(2) for
modification of his sentence, in light of Sentencing Guidelines
Amendment 591. Because the amendment did not lower the guideline
range under which Duong was sentenced, the district court did not
have authority under 28 U.S.C. § 3582(c)(2) to reduce his
sentence. See United States v. Owens, No. 03-10277, 2003 WL
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40196
-2-
21994002, at **1 (5th Cir. Aug. 20, 2003) (unpulished), cert.
denied, 124 S. Ct. 1525 (2004).
Duong contends for the first time on appeal that his
sentence was illegal in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). Apprendi has not been applied retroactively. See
United States v. Brown, 305 F.3d 304, 310 (5th Cir. 2002).
Because the appeal is frivolous, it is DISMISSED. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR.
R. 42.2.
APPEAL DISMISSED.